An individual who wants to gain entry into the United States is known as an alien. An alien may apply for a visa at a United States Consulate in their home country.
If the individual is issued a visa, they are free to come to the United States and attempt to enter. At the United States border, the individual may undergo inspection, or questioning, by United States Immigration.
At this time, the individual is not entitled to counsel, or an attorney. Because the alien is merely knocking at the door, they are not deemed to have Constitutional protections.
What is Applying for Admission?
An individual who wants to live in the United States is required to apply for an immigrant visa. The individual must do so at the United States Consulate in their home country and not at the port of entry into the United States. Any individual who wants to receive an immigrant visa is required to obtain a sponsor.
A sponsor is a United States citizen and is typically a family member. This individual must file a petition to allow the alien to apply for admission into the U.S.
What are Grounds of Inadmissibility?
When an alien first applies for admission into the United States, they are subject to grounds of inadmissibility. Inadmissibility is determined by the United States Citizenship and Immigration Services (USCIS) at the time of the individual’s arrival at the port of entry. The USCIS BCIS was formerly known as the Bureau of Citizenship and Immigration Services (BCIS) and prior to that, the Immigration and Naturalization Service (INS).
The grounds for inadmissibility may be considered at the time the individual applies for their visa, at any admission, or when an individual applies to adjust their status.
Any alien who is deemed inadmissible will not be permitted to enter the United States. An alien may be deemed inadmissible for many reasons, which may include:
- Health:
- Any alien who is determined to have a communicable disease which is a public health concern is considered inadmissible;
- Any alien who has failed to produce documentation of vaccination against vaccine-preventable diseases is considered inadmissible;
- Individuals who are determined to have a physical or mental disorder and may be a threat to themselves or others are inadmissible; and
- Drug abusers and addicts are inadmissible; and
- Criminal status:
- Individuals convicted of certain crimes, including crimes of moral turpitude, or those acts which violate the moral standards of the U.S., or a violation of a controlled substance law in any country, are inadmissible;
- Individuals who have been convicted of multiple crimes may be inadmissible; and
- Individuals may be admissible if they have engaged in certain crimes, including:
- drug trafficking;
- prostitution;
- trafficking in persons;
- money laundering; and
- other crimes; and
- Security;
- Individuals who seek to enter the U.S. to engage in acts of espionage, such as the illegal export of goods, technology, or sensitive information, or to sabotage, which includes activities relating to the overthrow of the U.S. government, against the U.S. are inadmissible;
- Any alien who is engaged in, is believed to be engaged in, or is likely to be engaged in, or has incited terrorist activity is inadmissible. Any alien who is a member of or has supported any terrorist organization is inadmissible; and
- Any alien whose presence the Secretary of State has reason to believe would have a serious adverse foreign policy consequence is inadmissible; and
- Economic status;
- Individuals who are deemed likely at any time to become a public charge, or ending up on welfare, are inadmissible. The government will take into account the alien’s:
- age;
- health;
- family status;
- assets;
- resources;
- financial status;
- education and skills; and
- possibly an affidavit of support.
- Those aliens entering the U.S. to perform unskilled or skilled labor are inadmissible unless the Secretary of Labor has certified that the alien’s type of work is needed and that it would not adversely affect the wages and conditions of the workers in the United States; and
- Illegal entrance or immigration violations;
- Individuals who are present without admission or parole, who fail to attend a removal proceeding, or who by fraud or willful misrepresentation seek to obtain admission are inadmissible;
- Stowaways and smugglers are inadmissible; and
- Any alien who has been previously removed or without proper documentation or is inadmissible.
Can You Appeal Your Application if You Were Deemed Inadmissible?
If an individual’s application or request is denied by the USCIS, they will be advised whether or not they have the opportunity to appeal that decision. Only the individual who applied or submitted a request may appeal the decision of the USCIS.
For example, if an employer submits a request for a work visa for an employee and that request is denied, only the employer may appeal that decision, not the employee. Individuals are not permitted to appeal a denial of extension of stay, a change of nonimmigrant status, or an appeal.
The USCIS will send the individual instructions for submitting an appeal, if one is available. Typically, the individual will be required to pay a fee and file their appeal at the office which made the original decision.
When an individual files their appeal, they may submit an explanation of their reason for appealing. Once the individual’s immigration request is reviewed a second time, they will be notified by the USCIS that either:
- The claim was overturned and the USCIS has ruled in their favor;
- The previous decision was upheld and the USCIS has ruled against them; or
- Their claim was returned with further instructions to the office that made the original decision.
An individual may submit a motion to reopen or a motion to reconsider with the office that denied the original immigration request within 30 days of that decision. When the individual submits their motion, they may request to be present at the review in order to make an oral argument.
If the individual submits a new motion to reopen, they must include new facts, affidavits, or documents. In order to obtain a ruling in their favor using a motion to reconsider, the individual must show that the original decision was based upon an incorrect application of the law. Alternatively, they must show that the USCIS rules were applied incorrectly when the case was originally decided.
How Has COVID-19 Affected Inadmissibility Factors?
COVID-19 has had an effect on every aspect of life in the United States and around the world, including immigration issues. The United States has tightened its restrictions on immigration during the pandemic.
In 2021, a freeze was placed on most green card applications. This freeze has been lifted and individuals should await instructions from the United States Consulate or Embassy at which they were interviewed.
If an individual is a green card holder who was outside the United States during the pandemic, they may face obstacles when attempting to return to the United States, especially if they were absent for 6 months or more. Following a 180 day absence, foreign nationals will be treated as if they are individuals who are again seeking admission into the U.S.
If any grounds of inadmissibility issues have arisen during their absence, individuals should bring documentation to overcome these concerns as well as provide documentation of the reason why the individual did not return to the U.S. sooner. At this time, if an individual has been infected with COVID-19, they will likely not be admitted into the U.S.
There may also be travel restrictions imposed on travel from certain countries such as China, Iran, the United Kingdom, the Schengen Area, Brazil, Ireland, and South Africa, as these areas have been linked with high rates of COVID-19. There are certain exceptions to these restrictions.
Many foreign nationals from these areas will not be permitted to enter the U.S. on a non-immigrant visa. They may, however, be able to circumvent this issue if they spend the 14 days prior to their return to the U.S. in a country which is not covered by travel restrictions and provide proof of their stay.
Should I Contact an Attorney?
Yes, it is very important to consult with an immigration attorney if you have been deemed inadmissible. Your attorney can review your situation, advise you whether an appeal may be available, and assist you throughout the process. Your attorney can also advise you on the current state of immigration laws as they apply to your situation.
